NATIONAL RAILROAD ADJUSTMENT BOARD
Arthur W. Devine, Referee
PARTIES TO DISPUTE:
BROTHERHOOD OF RAILWAY, AIRLINE AND STEAMSHIP
CLERKS, FREIGHT HANDLERS, EXPRESS AND
STATION EMPLOYES
THE WESTERN PACIFIC RAILROAD COMPANY
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (GL-6853) that:
1. The Carrier violated the rules of the Agreement extant between the parties when it permitted and/or instructed 2 female employes at Stockton Round House to work in excess of the number
of hours allowed per day under the California State Labor Code.
2. Mrs. Velma Prentiss, Stockton Round House Relief Clerk,
shall now be allowed 8 hours pay at the punitive rate for September
11 and 18, 1969, October 11, 17, 22, and 31, 1969.
EMPLOYES' STATEMENT OF FACTS: On September 11, 1969, Mrs.
Velma Prentiss was the regular assigned Round House Relief Clerk No. 2 at
Stockton, California. Her assigned schedule was:
Mon-Tues -4 P. M. to 12 Mid.
Wed-Thur-12 Mid. to 8 A. M.
Fri-Sat -Rest Days
Sunday -8 A. M. to 4 P. M.
Mrs. G. S. Crawford was a furloughed clerk at this time and Mrs. E. L.
Ferguson was regularly assigned to Round House Clerk 4 P. M. to 12 Mid.
with rest days of Monday and Tuesday.
On the following days Mrs. Ferguson and Mrs. Crawford were used in
excess of the Hours of Service Law for the State of California:
Date Employe Hours Worked
9-11-69 Ferguson 10:30 A. M. to 12 Mid.
9-18-69 Ferguson 8 A. M. to 12 Mid.
10-11-69 Ferguson 8 A. M. to 12 Mid.
10-17-69 Crawford 8 A. M. to 12 Mid.
10-22-69 F erguson 8 A. M. to 12 Mid.
10-31-69 Crawford 12Mid. to 4 P. M.
On the dates of the instant claim, two former Oroville Clerks (Mrs.
Ferguson and Mrs. Crawford) set up the reporting and filing system relating
to the Diesel locomotive repair work then being done at Stockton.
The instant claims were initially submitted by Claimant Velma G. Prentiss
to the Chief Mechanical Officer on November 9 and 10, 1969 (Carrier's Exhibit
"A"-1 through 6) and were denied by the Chief Mechanical Officer in letters
dated November 13, 1969. (Carrier's Exhibit "B"-1 through 6). Attached as
Carrier's Exhibits "C" and "D" are copies of the correspondence in connection
with the progression of the instant claim on the property.
Copy of the controlling agreement between Carrier and the Brotherhood of
Railway Clerics, effective December 16, 1943, Revised September 16, 1965, is
on file with the Third Division, National Railroad Adjustment Board and is
hereby incorporated herein by reference. Rule 29, 31(f) and 40(d) of said
Agreement is quoted below for your Board's ready reference.
"Rule 29. Employes covered by those soles shall be in line for
promotion, assignments, and displacements under these rules shall be
based on seniority, fitness and ability; fitness and ability being sufficient, seniority shall prevail. When an employe ,junior to other applicants is assigned to a bulletined position, the senior employes making
application will be advised the reason for their non-assignment if they
request such information in writing and file it within 15 days from
date of assignment.
NOTE: The word "sufficient" is intended more clearly
to establish the right of the senior employe to bid in a new
position or vacancy where two or more employes have adequate fitness and ability."
"Rule 31(f).
Employes will be selected to fill positions pending
assignment by bulletin and all short vacancies in accordance with
Rule 40(d) or Rule 29."
"Rule 40(d). Such employes, when available, shall be given preference on a seniority basis to all extra work, short vacancy (except as
amended by Rule 20(h) and/or vacancies occasioned by the filling of
positions pending assignment by bulletin. When a bulletined new
position or vacancy is not filled by an employe in service senior to a
furloughed employe on that roster who has protected his seniority as
provided in this rule, the senior qualified furloughed employe will be
called to fill the position. Furloughed employes failing to return to
service within 7 days after being notified (by mail or telegram sent
to last address given) or give satisfactory reason for not doing so,
will be considered out of the service. Employes hired for the performance of extra work shall be considered as furloughed employes
under this rule." (Exhibits Not Reproduced.)
OPINION OF BOARD:
The Petitioner's basic contention is that Carrier
was prohibited by the California Labor Code from working women employes
more than 10 hours on any date and therefore Carrier violated Rule 9 which
reads in part:
. . applicable laws enacted for the government of their (women
employees) employment must be observed."
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In response the Carrier contends that in Summary Judgment signed
November 22, 1968, the United State District Court, Central District of California, Civil Action No. 67-1377-F, held that the California Labor Code
limiting the number of hours women may work violated the 1964 Civil Rights
Act, and, consequently, there being no limit on the number of hours a women
may work, there could have been no violation of the California Labor Code or
of Rule 9.
Based upon the Record, we find that the Petitioner has shown no contractual basis for the claim, and it will be denied.
FINDINGS. The Third Division of the Adjustment Board, upon the
whole record and all the evidence, finds and holds.
That the parties waived oral hearing;
That the Carrier and the Employes involved in this dispute are respectively Carrier and Employes within the meaning of the Railway Labor Act,
as approved June 21, 1934;
That this Division of the Adjustment Board bas jurisdiction over the
dispute involved herein; and
That the Agreement was not violated.
AWARD
Claimed denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of THIRD DIVISION
ATTEST: E. A. Killeen
Executive Secretary
Dated at Chicago, Illinois, this 16th day of July 1971.
Keenan Printing Co., Chicago, Ill. Printed in U.S.A.
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